Gujarat High Court
Urvish Bavanjibhai Solanki vs State Of Gujarat & 3 on 2 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2884/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 2884 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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URVISH BAVANJIBHAI SOLANKI....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PREMAL S RACHH, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/05/2017
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R/SCR.A/2884/2017 JUDGMENT
ORAL JUDGMENT
1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"17 (A) Your Lordships be pleased to issue appropriate writ, order or direction, directing the respondent police authorities to forthwith register the fresh FIR against accused persons by recording correct version of the incident as narrated by petitioner in written complaint of petitioner (Annexure A) and looking to the peculiar facts and circumstances of the case, the petitioner further prays this Hon'ble Court to direct that investigation be carried out through State C.I.D. (Crime) and/or Central Bureau of Investigation, so as to ensure fair impartial investigation, in the interest of justice and equity;
(B) Your Lordships be pleased to quash and set aside N.C. Case No.17/2017 registered with Prabhas Patan Police Statin, Tal. Veraval, Dist. Gir Somnath as the same is not depicting correct and true version of the incident and is concocted.
(C) Your Lordships be pleased to direct respondent no.2 to take necessary action against the erring police officers, including the PSI of Prabhas Patan Police Statin, Dist. Gir Somnath, for dereliction in performance of duties, in the interest of justice;
(D) Your Lordships be pleased to direct the respondent authorities to register fresh FIR against accused persons by recording correct version of the incident as narrated by petitioner in written complaint of petitioner (Annexure A) and further direct investigation through State C.I.D. (Crime), pending the admission, hearing and final disposal of this petition;Page 2 of 22
HC-NIC Page 2 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT (E) Your Lordships be pleased to pass such other and further order as the nature and circumstances of the case may be required;"
2 A victim is as much a part of the criminal justice system as the accused is. It is the bounden duty of the State to ensure a free and effective access to justice to all victims of crime. The lack of anxiety of the police and its inertia in not registering the First Information Report on the basis of the complaint lodged by the writ applicant in writing is apparent. The police concerned have been mute spectators so far. The police appears to be stacked in favour of Mr. Parmar (M.L.A.) and his accomplices, probably, because Mr. Parmar belongs to the ruling dispensation. The reluctance of the police to perform their duties, in the present case, has caused the writ applicant to approach this Court in its writ jurisdiction.
3 The writ applicant herein is serving as a "Field Officer", at the Dari Toll Plaza, situated at the Jetpur - Somnath Four Tracks Road. The Dari Toll Plaza is functioning according to the rules and regulations of the State Government. The writ applicant has to collect the toll tax amount from the vehicles passing through that area. On 13th April 2017, while the writ applicant was on duty, at the Dari Toll Plaza, at around 8 P.M., one white 'Mahindra Bolero' car with a board "MLA Gujarat" bearing the registration No.GJ118082, came ahead of the booth Nos.3 and 4, and when the toll tax was demanded, three persons namely Sursing G. Parmar, i.e. the son of Govindbhai Parmar (MLA) from the Talala Assembly Constituency came out of the car and started hurling abuses upon the employees of the toll booth. The writ applicant could immediately sense trouble at the end of the MLA and his accomplices. With a view to see that the law and order situation does not get Page 3 of 22 HC-NIC Page 3 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT disturbed, he immediately dialed 100 of the police control room from his mobile and sought the help of the police. It appears that thereafter, two other cars, one 'TATA Inova' came at the toll plaza and 10 to 12 persons got down with pipes and wooden logs in their hands and approached the writ applicant. All these persons were led by Govindbhai Parmar, the MLA. The MLA started abusing and assaulting the writ applicant with weapons and also damaged the barricades / barriers at the toll plaza. All those persons threatened the writ applicant with dire consequences, including to set him ablaze along with the toll booth, if the writ applicant would ever dare to again demand toll tax. The MLA took out his pistol and placed it on the forehead of the writ applicant and threatened to kill him. One of the miscreants went to the extent of snatching the wallet of the writ applicant which contained around Rs.3,000/ to 3,500/.
4 It appears that the entire episode came to be recorded in the CCTV camera. The CD of the CCTV footage is on record, which speaks for itself.
5 In such circumstances referred to above, the writ applicant lodged a complaint in writing addressed to the Police Inspector of the Prabhas Patan Police Station, District: Somnath dated 16th April 2017 and prayed that an appropriate F.I.R. be registered against Govindbhai Parmar and his accomplices. The contents of the complaint read as under:
"Complainant: Urvish Bhavanjibhai Solanki Dari Toll Plaza, Taluka Veraval District Gir Somnath M.No.8155050255 Date:16/04/2017 To, Page 4 of 22 HC-NIC Page 4 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT The Police Inspector, Prabhas Patan Police Station, Taluka Veraval District Somnath.
Subject: Written complaint against Shri Govindbhai Parmar, Member of Legislative Assembly of Talala and his son and 17 18 unknown persons with them, for attacking, assaulting and beating me severely and putting pistol on my forehead and giving threat to kill and for looting money from my purse.
My name is Urvish Bavanjibhai Solanki, age 21 years, Hindu by religion, by caste Ahir, residing at Opp. Swaminarayan Temple, Plot, Upleta 360 490, Taluka Upleta, District Rajkot, at present I am residing at Dari Toll Plaza, Taluka Veraval, District Gir Somnath.
Since last three months I am working as Field Officer at Dari Toll Plaza and here, I am performing my duties as per the Rules and Regulations and policy of the Government at Toll Booth and by showing good conduct and extending cooperation to the vehicle drivers passing from here, I am performing my duty and recovering the amount of Toll.
On 13/04/2017 at around 8.00 hours in the evening I was on my duty at Dari Toll Plaza. At that time, near Booth no. 3 and 4, one white colour Mahindra Bolera vehicle bearing board of MLA GUJARAT No. 8082 came and three persons got down from the same vehicle and were abusing the Toll employees. On hearing the same and to see that the situation does not get worse, I called the police on 100 number from my Mobile Phone No. 81550 50255 and informed about the situation and called for the help. In the meanwhile in the extra wide line, two cars came from Veraval to Junagadh side, out of which one was Innova car and from both these cars ten to twelve people with thick wooden planks, iron pipes got down from these vehicles and they started coming towards me. Amongst all these persons one person was wearing white colour clothes and I subsequently came to know that his name was Govindbhai Parmar, Member of Legislative Assembly from Talala Constituency. All these persons together used abusive language with me and started beating me randomly. I was given blows with iron pipe on the stomach and I was also beaten up with the blows with wooden planks on my left hand and also in the left leg. In the meanwhile, as Govindbhai Parmar tried to hit me on my head with iron pipe, in self defence, I kept my hand in between and thereafter Page 5 of 22 HC-NIC Page 5 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT all these persons took me on one side and started giving threats that, "Why do you collect toll of our vehicles. If you will recover toll of our vehicle, then we will burn the toll booth and also set you ablaze". In the meanwhile, Govindbhai Parmar put his pistol on my forehead and threatened me that, "stop collecting toll of our vehicle and if you will file police complaint, then we will drag you out from your village and kill you." In the meanwhile, number of persons increased upto 20 persons approximately. At that time one person standing near Govindbhai Parmar threatened me that, give us back the amount of ticket of the toll tax collected from us. By saying this, he forcibly snatched my purse in which there was cash of around Rs.3, 000/ to Rs.3, 500/ and at that time I, with folded hands, begged for mercy and said, "let me go and do not beat me, I am having severe pain in the stomach."
At that time out of these persons one person said that, "let us go upstairs in the office and see in the camera, as to who were the others person collecting our toll. By saying this, when those people went ahead, at that time using my presence of mind and moving on one side, I called 108 Ambulance. Thereafter, I was taken by the Ambulance at Veraval Government Hospital. At the hospital, no one came to me for recording my complaint and I was shifted to Junagadh Hospital for further treatment, but till date, I have neither been heard by any one nor my complaint is recorded.
It is my humble request to you Sir that, after carrying out proper inquiry against Govindbhai Parmar, Member of Legislative Assembly, Talala, his son and other 1718 unknown persons with them, register my complaint, otherwise, I will not be spared alive by these persons.
Note: The CCTV footage of the above incident is enclosed.
sd/
Signature of the
Complainant
Copy to: For information and necessary action
1. PMO , New Delhi
2. NHAI, NEW DELHI
3. Project Director, NHAI, Rajkot
4. The Hon'ble Chief Minister Gujarat State, Gandhinagar
5. Minister of Home, Gujarat State, Gandhinagar
6. DGP, Gujarat State
7. District Magistrate and Collector, Gir Somnath Page 6 of 22 HC-NIC Page 6 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT
8. The DSP, Gir Somnath
9. The Dy. S.P., Gir Somnath"
6 Despite the above, the police says that it is looking into the mater and a preliminary inquiry is in progress. The police is of the view that the complaint lodged by the writ applicant fails to disclose commission of any cognizable offence.
7 In such circumstances, the writ applicant has come before this Court by way of this writ application.
8 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether this Court should issue a writ of mandamus for the registration of the F.I.R.
9 At this stage, let me look into the stance of the police. An affidavit inreply dated 2nd May 2017 has been filed duly affirmed by one Mr. K.I. Meghnathi, the Police Sub Inspector of the Prabhas Patan Police Station, District: Gir Somnath inter alia stating as under:
"I, undersignedShri K. I. Meghnathi, Police Sub Inspector, Prabhas Patan police station District Gir Somnath, respondent no. 3 herein do hereby solemnly affirm on oath and state as under:
1. That I am in receipt of the notice dt. 24.04.2017 issued by this Hon'ble Court in the afore said matter as well as the copy of the memo of the petition and the annexures attached therewith. I have carefully gone through the content of the petition and the annexures.
2. That being the investigating officer of the FIR I CR no. 37/2017 dt. 13.04.2017 registered with the Prabhas Patan Police station registered by the proposed accused herein as well as one N C case registered with the same Police station in respect of same incident and also being in receipt of the application dt. 15.04.2017 given by the petitioner, I being well verse with the actual facts of the case and the controversy involved, as a Page 7 of 22 HC-NIC Page 7 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT respondent no. 3 herein I am competent and authorized to file this affidavit in reply in compliance of the Oral order dt. 24.04.2017 passed by this Hon'ble Court.
3. At the Outset, I strongly deny each of the allegations, contentions and averments raised by the petitioner so raised by the petitioner however specific non dealing of the any of the allegations, contentions and averments in parawise manner may not be construed as admission of the same. I am filing this affidavit in reply for the limited purpose for placing on record the correct facts of the case as well as to place on record relevant material. I crave leave of this Hon'ble Court to file further detailed affidavit in reply as and when required.
3. 4. That I may crave leave of this Hon'ble Court to add, amend, alter or delete any of the fore going paras as and when required.
5. That the Petitioner herein is the original informant who has invoked supervisory writ jurisdiction of this Hon'ble Court under Article 226 and Article 227 of the Constitution read with Article 14 and 21 of the Constitution of India and thereby prayed for direction, writ or order, directing the respondent police authorities to forthwith register the fresh FIR against the accused persons by recording correct version of the incident as narrated by petitioner in written complaint of petitioner produced as Annexure A and looking to the peculiar facts and circumstances of the case, the petitioner has further prayed to direct the investigation be carried out through State C.I.D. (Crime) and / or Central Bureau of Investigation , so as to ensure fair and impartial investigation, in the interest of justice. That the petitioner has also prayed for direction to quash and set aside N. C. case no. 17/2017 registered with Prabhas Patan Police station, Taluka Veraval, District Gir Somnath as the same is not depicting correct and true version of the incident and is concocted. That the petitioner has also prayed for direction to respondent no.2 to take necessary steps against the erring police officers, including the PSI of Prabhas Patan police station, Gir Somnath for dereliction in performance of duties. That as an interim relief the petitioner has also prayed for direction to register fresh FIR against the accused persons by recording correct version of the incident as narrated by petitioner in written complaint Annexure A and further direct investigation through State CID ( Crime), pending the hearing of the afore said petition.
6. The gist of the submissions made by the petitioner is that the N.C. case no. 17/2017 registered with the Prabhas Patan Police station given by the Manager, Toll plaza does not record correct version of the incident and in fact it is alleged that the said Manager/Toll plaza does not know gujarati and under guise of taking statement, the same is recorded by Police authority as N. C. case in order to save skin of the MLA Govinbhai Parmar, Talala constituency and his son Sursinh. It is also alleged that on Page 8 of 22 HC-NIC Page 8 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT one hand the FIR given by the MLA has been immediately registered and other hand N. C. case has been registered with concocted facts though CCTV footage is available. It is also contended that the witness namely Dipak Vadhya, Manager of toll plaza has given an affidavit dt.
15.04.2017 to the District Superintendent of Police, Gir Somnath pointing out this fact that he was not present when the incident occurred at toll plaza and has never given any complaint. It is further contended that in fact the petitioner has approach the District Superintendent of Police, Gir Somnath with written complaint dt. 15.04.2017 alleging about commission of serious offence against the accused persons for their criminal act. It is also alleged that no further action has been taken by the Police on the said written complaint and efforts are not done in right directions due to pressure from said MLA Govindbhai Parmar. In these back drop of allegations, the petitioner has prayed for afore said reliefs.
7. At this stage, I crave leave of this Hon'ble Court to summarize the true facts which are borne out from the record as well as revealed during the course of investigation. That the said details are summarized as under:
7.1 That on 13.04.2017, phone call was received from the Deputy Superintendent of Police, informing about some incident having occurred at toll plaza. Since the PI of the Prabhas Patan was not available since he was to attend High Court proceedings, I being the Police Sub Inspector of Prabhas Patan Police station immediately proceeded with my team.
7.2 That I reached the spot with PCR Van at toll plaza booth on Veraval Jetpur Road, which is around one and half kilometer away from the Police station. That other police staff of Special Operation Group, and Local Crime Branch and Veraval City police station have also reached the place of incident. That on reaching the spot, group of 60 70 persons were found standing near toll plaza booth. That the MLA Govindbhai Parmar of Talala constituency along with his son Sursinh Parmar was also present at the spot and when the inquiry was made about incident, they proposed to lodged FIR against one Urvishbhai Bavanjibhai Solanki, who was alleged to be employee of the toll plaza collection booth. That upon recording the statement of the Sursinhbhai Govindbhai Parmar FIR bearing I CR. No. 37/17 was noted under section 394, 323,504, 114 of the Indian Penal Code and section 135 of the Gujarat Police act and was sent to the Police station. Here with annexed and marked as Annexure Rl is the copy of the said FIR bearing registration no. I CR. No. 37/2017, dt. 13.04.2017,, along with the statement of said Sursinh Govindbhai Parmar.
7.3 That on other hand on 13.04.2017, at around 21:35 Hrs. the PSO namely R. D. Majgul received one D/O entry no. 91/17 infroming about the admission of one Urvishbhai Bavanjibhai Solanki being injured and hospitalized in Government hospital. Here with annexed and marked as Annexure Rll is the copy of the said communication entered by the PSO, Page 9 of 22 HC-NIC Page 9 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT Prabhas Patan police station. That on receipt of the said information, the PSO Mr. R. D. Majgul proceeded to Hospital to record the complaint of Urvishbhai Solanki. That since prima facie facts indicated were of loot and rioting and therefore, the investigating officer was called upon. However, when I reached hospital the petitioner herein was not found in the hospital and when I inquired from the Doctor namely Dr. Alok Sharma, who attended the petitioner he informed me that in fact no external injuries were noted on the body of the petitioner and when the doctor inquired about history , he initially stated due to scuffle but did not gave further details and insisted for certificate at that stage, the petitioner in consultation with his friend Sanjay Lakhabhai and others insisted to record the history as assaulted by Govindbhai Parmar and 1520 others.
That during his brief stay at Hospital, they remained hostile and though no reference note was required they pressurize the hospital staff to issue reference note. That I immediately requested the said Doctor to kindly provide the copy of the injury certificate and other related medical case papers. Here with annexed and marked as Annexure Rll is the copy of the said letter dt. 13.04.2017 submitted to the Medical officer, Veraval Government Hospital. Here with annexed and also marked as Annexure R lll is the copy of the medical certificate of the petitioner collected by the investigating officer during course of investigation.
7.4 I further say and submit that looking into the contradictions in the say of the petitioner and I was suggested by the Deputy Superintendent of Police Shri K. N. Patel to inquire from the spot about the actual incident and record the FIR. That the investigating officer therefore, went to the place of incident and inquired from one Dipak Harpaldhan Vadhiya who was the Manager of the Toll booth. His statement was recorded on 14.04.2017 at around 00 : 36 Hrs. That the said statement was recorded by me and the same was read to and explain to him. Here with annexed and marked as Annexure /?/!/is the copy of the said statement dt. 14.04.2017. That I once again approached Hospital to record the statement of the petitioner but by that time the petitioner had left the hospital.
7.5 Meanwhile I informed the FSL team to visit the place of incident. Here with annexed and marked as Annexure RV is the copy of the said Fax message dt. 14.04.2017 requesting for FSL team. That I also tried to record the statements of witnesses who were present when the incident occurred. The names of few witnesses includes Jaydeep Arjabhai, Bharatbhai, Mansinh Merambhai, Ashokbhai Karshanbhai, Vijay Babubhai and Subhash Samribhai. That in respect of the DO entry no.91/2017, I had recorded the statements of Ramzanbhai Majgul, the Police Head Constable and Vinubhai Dodiya, Police constable of Prabhas Patan Police station on 14.04.2017. Here with annexed and marked as Annexure RVI is the copy of the statements of said Police officers.
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7.6 That on 17.04.2017 the petitioner herein had send the written
complaint bearing dt. 15.04.2017. Here with annexed and marked as Annexure RVII is the copy .of the said written compliant bearing dt. 15.04.2017 which was received on 17.04.2017. I humbly say and submit that I had inquired about the whereabouts of the petitioner for recording his statement but it appears that since he has been arraigned as accused in cross FIR, the petitioner was hiding himself and has not approached personally to register his FIR. I further humbly say and submit that in fact the brother of the petitioner who had come to the Police station was requested to send the petitioner to record his statement but till date, the petitioner is not available for recording his statement.
7.7 I had approached to the Manager to provide details of the employees who are working and were present when the incident had occurred. That on 20.04.2017, I once again approached the office of the Manager but he was not found. Here with annexed and marked as Annexure RVIII is the copy of the said fact to be requested to be entered in station diary. I further say and submit that on 22.04.2017, I once again approached to the Manager for collecting requisite information, however, he assured to part with information as early as possible. The copy of the statement dt. 22.04.2017, recorded of the said Manager is annexed and marked as Annexure R IX.
8. Now, in these back drop of details of investigation so far carried out by me, I humbly say and submit that the grievance of the petitioner regarding registration of correct version of the N.C. case is concerned, it may kindly be noted that since during the recording of the statement of the Manager of Toll booth a complaint of ran sacking of office of toll booth was made, it was explained to him that the same shall be registered as N. C. case and still the investigation of the said N. C. case is going on and during the course of investigation if any material substantiating allegations is found then the same shall be consider in accordance with law. So far as allegations as regard not recording correct version is concerned, it may kindly be appreciated that it has been specifically mentioned by the investigating officer that he has been explained and understood the statement, which indicates the fact that investigating officer was conscious of the fact that the Manager Dipakbhai Vadhiya does not speak gujarati language. Even otherwise the said Dipakbhai Vadhiya has not come forward to quash the said N. C. case 17/17 on the ground that correct version of the complaint has not been recorded and the petitioner herein is not the aggrieved party to raise such contention thereby praying for quashment of said N.C. complaint. I strongly deny that with any biased mind the investigating officer due to involvement of MLA and his son, the investigating officer is not proceeding in right direction. In fact, the incident has occurred on 13.04.2017 and thereafter, some progress is there in FIR as well as N.C. case since thereafter the investigation has hardly proceeded for 710 days. I strongly deny that no action has been Page 11 of 22 HC-NIC Page 11 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT taken on written complaint of the petitioner. It may kindly be appreciated that so far as registration of FIR on written complaint is concerned, it may kindly be appreciated that the written complaint has been received from the petitioner on 17.04.2017, however, the petitioner has not remained present before the investigating officer to record his statement and give the names of his witnesses. That the present petition has been filed on 20.04.2017 and was moved for hearing on 24.04.2017 which indicates that after submitting the written complaint which was received 17.04.2017, within 3 days he preferred petition to register FIR. That on one hand the petitioner is not cooperating with the investigating officer and on other hand he is making grievance about non registration of FIR. I assure the Hon'ble Court that if the petitioner approaches the investigating officer for recording his statement then upon preliminary inquiry if cognizable offence is disclosed, FIR shall be registered forthwith. So far as CCTV footage is concerned, I have seen the same and it does not at any stage disclose the act of MLA or his son being personally involved in doing any criminal act. It is true that the CGTV footage does indicate that the MLA had come on the spot after the incident occurred but it does not reveal anything more. 1 further say and submit that investigation of the I CR. No. 37/2017 and N. C. case 17/17 is still in progress and the 10 is still investigating the complaints at preliminary stage as only 9 days were completed when this petition was filed." I am still in process of collecting details of list of employees who were present at time of incident as their version of incident is to be recorded. Moreover, since considering the medical certificate, the 10 is in process of recording the statement of Doctor of Government Hospital, Veraval. It may kindly be appreciated that simultaneously the 10 has also been entrusted other work and he was occupied in bandobast due which for few days he could not attend the case. In these facts and circumstances, I humbly request the Hon'ble Court to not to entertain the petition."
10 The highhandedness of the police is to such an extent that I am unable to express the same in words. The police very readily and promptly registered an F.I.R. filed at the instance of one Sursing G. Parmar, i.e. the son of the MLA against the writ applicant and his employees for the offence punishable under Sections 394, 323 and 504 of the Indian Penal Code vide C.R. No.I37 of 2017, but did not deem fit to register the F.I.R. of the writ applicant. It appears that the writ applicant was subjected to medical examination at the Government Hospital, Veraval. The MLC certificate at Annexure: RIII (page:53) contains the history of assault, wherein it has been stated that one Page 12 of 22 HC-NIC Page 12 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT Govindbhai Parmar and 15 to 20 others assaulted the writ applicant with Dhoka and pipes and robbed him of his money.
11 The facts of this case are very shocking and disturbing. A member of the Legislative Assembly, supposed to be a representative of the people indulged in an act, which not only amounts to a serious offence, but something very shameful and unbecoming of a representative of people.
12 Should I expect anything from the police in such circumstances, more particularly, when an MLA is involved in the matter along with his son and other accomplices. Even a layman, on plain reading of the complaint, would be able to say that the allegations do disclose commission of a cognizable offence and the F.I.R. should be registered in accordance with law. I fail to understand why the police has thought fit to conduct a preliminary inquiry. What is there to inquire when the allegations are so clear ? Why a preliminary inquiry when there is thumping evidence in the form of eyewitnesses, including the victim and the CCTV itself ? This is nothing, but dereliction of duty on the part of the police, which warrants immediate departmental action.
13 Is an MLA of the State exempted from paying toll at the toll plaza? Is his private car exempted or falling in the category of those exempted vehicles not liable to pay the toll? Are the politicians not expected to abide by the rule of Law? What is in the mind of the Union Government is something noteworthy. The Government wants the culture of VIP to be eradicated and inculcate the culture of EIP (Every Person Important). Is an MLA so important a person that he can decline to pay toll tax at the toll booth which every citizen is otherwise duty bound unless exempted in Law?
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14 In many judgments delivered by me, I have reminded the police of
the Code of Conduct. Let me once again do the very same job with the hope that at least one day the police would be able to understand their duties.
15 The Police figure as Entry 2 in State List in the Seventh Schedule of the Constitution, thereby making State Government primarily responsible for maintaining public order. Invariably, police, which is a part of the civil administration, is at the forefront in maintaining law and order under the framework of constitutional governance based on principles of Sovereign Socialist Secular Democratic Republic to secure fundamental right of its citizens. In consonance with the idea of democratic policing, a Code of Conduct for the Police in India was adopted at the Conference of Inspectors General of Police in 1960 and circulated to all the State Governments.
● Code of Conduct for the Police in India (1960):
1. The police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it.
2. The police are essentially a law enforcing agency. They should not question the propriety or necessity of any duly enacted law.
They should enforce the law firmly and impartially, without fear or favor, malice or vindictiveness.
3. The police should recognize and respect the limitations of their powers and functions. They should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases.
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Nor should they avenge individuals and punish the guilty.
4. In securing the observance of law or in maintaining order, the police should, as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.
5. The prime duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.
6. The police must recognize that they are members of the public, with the only difference that in the interest of the society and on its behalf they are employed to give full time attention to duties, which are normally incumbent on every citizen to perform.
7. The police should realize that the efficient performance of their duties would be dependent on the extent of ready cooperation that they receive from the public. This, in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence. The extent to which they succeeded in obtaining public cooperation will diminish proportionality the necessity of the use of physical force or compulsion in the discharge of their functions.
8. The police should always keep the welfare of the people in mind and be sympathetic and considerate towards them. They should always be ready to offer individual service and friendship Page 15 of 22 HC-NIC Page 15 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT and render necessary assistance to all without regard to their wealth and/or social standing.
9. The police should always place duty before self, should maintain calm in the face of danger, scorn or ridicule and should be ready to sacrifice their lives in protecting those of others.
10. The police should always be courteous and well mannered; they should be dependable and impartial; they should possess dignity and courage; and should cultivate character and the trust of the people.
11. Integrity of the highest order is the fundamental basis of the prestige of the police. Recognizing this, the police must keep their private lives scrupulously clean, develop selfrestraint and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens.
12. The police should recognize that their full utility to the State is best ensured only by maintaining a high standard of discipline, faithful performance of duties in accordance with law and implicit obedience to the lawful directions of commanding ranks and absolute loyalty to the force and by keeping themselves in the state of constant training and preparedness.
16 Today the country we live in is a country beset by tensions, clashes, conflict, crime, corruption, fears and horrors. There exists an environment of helplessness and despondency. Crime and corruption have been with us from time immemorial. They are a persistent evil. Crime and corruption have been presenting serious problems to the Page 16 of 22 HC-NIC Page 16 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT present governments and are a heavy burden upon the society. The poison of crime and corruption has permeated every walk of life in India. The clouds of danger hoovering over the social, economic and political scenario of India cannot be blown away so long as corruption, criminalisation of politics, politicisation of crime and corruption and politicisation of bureaucracy occur. India will not enjoy rapid growth so long as problems of crime and corruption multiply. People in general have lost confidence in the police and administration who are always genuflecting before people in power.
17 Let me remind the police of a recent judgment of the Supreme Court in the case of State of Telangana vs. Habib Abdullah Jeelani and others [(2017) 2 SCC 779], as contained in para 8:
"The exceptions that were carved out pertain to medical negligence cases as has been stated in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1]. The Court also referred to the authorities in P. Sirajuddin v. State of Madras [(1970) 1 SCC 595] and CBI v. Tapan Kumar Singh [(2003) 6 SCC 175] and finally held that what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence."
18 I had an occasion to consider almost an identical issue in the case of Ramanbhai Ashabhai Makwana vs. State of Gujarat and others [Special Criminal Application No.4768 of 2014 decided on 6th January Page 17 of 22 HC-NIC Page 17 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT 2015]. Let me quote the observations made by me in the said judgment as under:
"20. According to the National Police Commission appointed by the Government of India in 1977, the basic role of the police is to function as a law enforcement agency and render impartial service to law, without any heed to the wishes, indications or desires expressed by the Government which, either come in conflict with or do not conform to the provisions contained in the Constitution or laws.
21. In the existing setup, the police function under the executive control of the State Government. According to the Commission, the manner in which the political control has been exercised over the police in this country has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization. The threat of transfer/ suspension is the most potent weapon in the hands of the politicians to bend the police down to their will. The Commission recommended that the superintendence of the State Government over the police should be limited to ensure that the police perform strictly in accordance with law. In the performance of its tasks, the police should be subject to overall guidance from the Government which should lay down broad policies for adoption in different situations. There should, however, be no instructions in regard to actual operations in the field. In regard to the investigation work, in any case, the police are beyond any intervention by the executives or politicians.
22. To help the State Government in the discharge of its superintending responsibility in an open manner under the framework of law, the National Police Commission also recommended to setup a State Secretary Commission through law in each State. The State Secretary Commission would (1) lay down broad policy guidelines and directions for the performance of preventive tasks and serviceoriented functions by the police; (2) evaluate the performance of the State Police every year and present a report to the State Legislature; (3) function as a forum of appeal to dispose of representations from officers regarding their being subjected to illegal orders and regarding their promotions; (4) generally keeping in review the functioning of the police in the state.
23. One of the important recommendations made by the N.P.C. is with regard to the Police response towards the weaker sections of the society.
24. The NPC has recommended the establishment of Special Investigation Cell in the police department at the State level to monitor the progress of the investigation of cases under the Protection of Civil Rights Act or other atrocities against the Scheduled Castes and Tribes. It has been recommended that a composite cell be constituted at the district level Page 18 of 22 HC-NIC Page 18 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT under the SubDivisional Officer to inquire into the complaints emanating from the Scheduled Castes/Tribes, particularly those relating to lapses in administrative measures meant for their relief.
25. An important cause for the dissatisfaction of the weaker sections of the society is that the police, sometimes, do not take cognizance of their complaints of illtreatment at the hands of the upper castes on the ground that complaints are noncognizable and, therefore, cannot be investigated by them without the orders from a Magistrate. The NPC has recommended that Section 155 of the Code of Criminal Procedure should be suitably amended to facilitate appropriate and effective police response to the non cognizable complaints in two categories of cases; (i) to protect a member of the weaker sections from exploitation and injustice, or (ii) to prevent a possible breach of public peace that might result from absence of effective action on complaint of noncognizable offence.
26. The Dy.S.P., Ms. Falguni Patel, has been appointed as the Dy.S.P. (SC/ST Cell).
27. The Political interference in the working of the police organizations is a hard reality in our system. The same has been repeatedly noticed by the various Commissions and Committees set up by the Government from time to time. The National Police Commission was appointed by the Government of India in 1997 with wide terms of reference covering the police organization, its role, functions, accountability, relations with the public, political interference in its work, misuse of powers, evaluation of its performance etc. This was the first Commission appointed at the national level after the independence. The Commission produced eight reports between 1979 to 1981, suggesting wide range of reforms in the existing police setup. The second report submitted by the National Police Commission specifically dealt with the aspect of political interference in police work. It observed that in the existing setup, the police function under the executive control of the State Government. According to the Commission, the manner in which the political control has been exercised over the police in this country has led to gross abuses, resulting in erosion of rule of law and loss of police credibility as a professional organization. The threat of transfer/suspension is the most potent weapon in the hands of the politicians to bend the police down to their will. The Commission made several recommendations to remedy the situation.
28. On account of the failure of the Government to implement the recommendations of the National Police Commission, a writ petition under Article 32 of the Constitution of India was preferred before the Supreme Court titled Prakash Singh and Ors. v. Union of India and Ors. being Writ Petition (C) No.310/1996. The same was disposed of by the Supreme Court on 22.09.2006 by its judgment reported in (2006) 8 SCC 1 : (2006 AIR SCW 5233). The Administrative Manipulation of the Police published Page 19 of 22 HC-NIC Page 19 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT in 1979 by the Bureau of Police Research and Development, which warned for excessive control of the political, executive and its principal advisers over the police as the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundations of democracy. The Supreme Court also took note of the reports of various other high powered Committees and Commissions which had examined the issue of police reforms, viz. (I) National Human Rights Commission, (ii) Law Commission, (iii) Rebeiro Committee, (iv) Padmanabhaiah Committee, (v) Malimath Committee on Reforms of Criminal Justice System, and (vi) The draft outline prepared by Sorabjee Committee for a new Police Act. (Government of India vide Office Memorandum dated 20.09.2005 constituted a Committee comprising Shri. Soli Sorabjee, former Attorney General, and five others to draft a new Police Act in view of the changing role of the police in view of the socioeconomic and political changes which have taken place in the country, and the challenges posed by the modern day global terrorism, extremism, rapid urbanization as well as fast evolving aspirations of a modern democratic society.
29. The Supreme Court also took note of the communication dated 03.08.1997 sent by the then Union Home Minister to the State Governments, wherein he echoed the overall popular perception that there has been a general fall in the performance of the police as also a deterioration in the policing system as a whole in the country, and he expressed that time had come to rise above limited perceptions to bring about some drastic changes in the shape of reforms and restructuring of the police before the country is overtaken by unhealthy developments. It was expressed that the popular perception all over the country appears to be that many of the deficiencies in the functioning of the police had arisen largely due to an overdose of unhealthy and petty political interference at various levels starting from transfer and posting of policemen of different ranks, misuse of police for partisan purposes and political patronage quite often extended to corrupt police personnel. The Union Home Minister expressed the view that rising above narrow and partisan considerations, it is of great national importance to insulate the police from the growing tendency of partisan or political interference in the discharge of its lawful functions of prevention and control of crime including investigation of cases and maintenance of public order. (See: Sajjan Kumar V. C.B.I. 2011 CRI.L.J. 1225)"
"31. Interference with the Police system, especially by the politicians encourages the Police Personnel to believe that his or her career advancement is not at all dependent on the merits of their professional performance, but can be secured by obliging or favouring politicians. Deliberate and sustained cultivation of a few individuals on the political plane takes up all the time of a number of Police Personnel to the detriment of the performance of their normal professional jobs to the Page 20 of 22 HC-NIC Page 20 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT satisfaction of the general public at large. This process sets the system on the downword slope to decay and total ineffectiveness.
32. Apart from the deterioration in the act of Police performance viewed from the public point of view, the exercise of such pressure on the Police system from political and other extraneous sources immediately damages the control system and weakens the normal chain of command that has to operate efficiently if the discipline and health of the system are to be maintained. Interference at the operational level in Police Stations, Police Circles etc. results in the total by passing of the supervisory officers in the hierarchy."
19 The case on hand is one in which I should not show any reluctance to issue the writ of mandamus, although ordinarily this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, should not issue a writ of mandamus to the police for registration of the F.I.R.
20 I am not a soothsayer, but by passage of time and experience, as a Judge, I can predict certain things. I know what next is going to happen in this case. No sooner the F.I.R. will be registered pursuant to the directions issued by this Court, then the next step will be to somehow win over the writ applicant or persuade him in all manner to compromise and then bring him before this Court and make him give his consent for quashing of the F.I.R.
21 In the result, this application succeeds and is hereby allowed. The Police Sub Inspector of the Prabhas Patan Police Station, Taluka:
Veraval, District: GirSomnath is directed to immediately register the First Information Report in accordance with law pursuant to the complaint lodged by the writ applicant herein in writing dated 16th April 2017. Upon such registration of the F.I.R., he shall transfer the same to the State C.I.D. (Crime) for the purpose of investigation. The Director General of Police, State C.I.D. (Crime) shall appoint a competent officer Page 21 of 22 HC-NIC Page 21 of 22 Created On Wed Aug 16 05:13:28 IST 2017 R/SCR.A/2884/2017 JUDGMENT for the purpose of investigation of the F.I.R.
22 With the above, this writ application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 22 of 22 HC-NIC Page 22 of 22 Created On Wed Aug 16 05:13:28 IST 2017